Retroactivity and retrospection – when is the rule of law violated?

https://doi.org/10.63189/HTKU4094

The lex retro non agit principle is one of the principles that arise from the clause of the democratic rule of law state, which is envisaged in Article 2 of the Constitution of the Republic of Poland, stipulating that the Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice. It is also closely linked with some other principles that follow from the aforementioned clause, i.e. the security of law, the certainty of legal relations as well as respect for acquired right. In turn, these are a source to a number of principles related to legislative activity. These principles entail inter alia the prohibition against the retroactive operation of law (lex retro non agit). The Constitutional Tribunal of the Republic of Poland has always treated the said prohibition as a guideline addressed to organs enacting law and as one of the fundamental principles of the Polish legal order.^[1] The lex retro non agit principle is well established in its jurisprudence.^[2]

In accordance with the lex retro non agit principle, law should not be applied backwards, that is, with regard to events which take place before a given law comes into force.^[3] According to the Tribunal, the essence of the principle at issue may be confined to the statement that legal norms should not be enacted which would order to apply newly enacted legal norms to events (understood sensu largo) which take place before the entry into force of newly enacted legal norms and with which the law did not link the legal effects which are envisaged by these norms (…). In other words, a statute has a retroactive force when the beginning of its application, in temporal terms, was set as of a time prior to the entry into force of that statute (it was not only enacted, but also correctly promulgated in a journal of laws).^[4] Moreover, in principle, law should operate for the future, and hence legal norms should not be enacted which are applied to actions which happened in the past and were finished before the entry into force of those norms. In other words, the legal consequences of events which took place based on former norms should be assessed in accordance with those norms even if, while making this assessment, new provisions are in force.^[5] This prohibition refers, in particular, to provisions regulating the rights and obligations of citizens if they worsen their situation in comparison to the previous legal situation.^[6]

It is noteworthy that the prohibition against the retroactivity of law refers solely to provisions which worsen the individual’s situation, so if provisions improve this situation, there are no obstacles as regards their retroactive application. Also, the Tribunal made a reservation that retroactive provisions may be established only in a statute.^[7] However, retroactive provisions may be recognised as constitutional if they improve the legal situation of some addressees of a given legal norm, and at the same time do not worsen the legal situation of the remaining addressees of that norm.^[8]

Violation of the principle under discussion is allowed only by way of exception, for very important reasons. Retroactivity must be also indispensable for the realisation of specific constitutional values, the realisation of which is not possible without the retroactivity of law. These other constitutional values must be exceptionally valuable and more important than the value protected by the prohibition of retroactivity. The Constitutional Tribunal provided the principle of social justice as an example.

The prohibition against retroactivity is understood in the strictest terms in criminal and tax law – retroactivity is not allowed in the realm of substantive criminal law, as in this realm there is an absolute prohibition of retroactivity, which arises from Article 42(1) of the Polish Constitution (Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law). In turn, retroactivity is relatively most acceptable in the realm of civil law.^[9]

Moreover, the enactment of retroactive provisions which worsen the situation of addressees of norms is difficult to accept especially when a problem solved by these regulations was previously known to the legislator and could have been solved without the use of retroactive provisions. The necessity to assign a retroactive effect to law must be always assessed individually, as it is difficult to establish a general and universal rule in that regard.^[10]

At this point, it is noteworthy that the concept of retroactivity is often confused and used interchangeably with the concept of retrospectivity, which constitutes apparent retroactivity.^[11] As was mentioned above, in accordance with the prohibition from retroactivity, the consequences of legal events which took place under the previous provisions should be assessed in pursuance of those provisions; however, if the consequences of legal events are still ongoing, then with respect to this new period of time, they should be assessed in accordance with the norm of the new statute. If events initiated under the former provisions are of a continuous character and are still ongoing, new provisions should be applied to them. The principle of retroactivity would be violated if the statute were assigned a binding force vis-à-vis legal relations which came into being and continued in the period prior to the entry into force of that statute. The Tribunal clarified that legal provisions which are applied to situations which come into being after their entry into force (the date on which their binding force begins) do not infringe the principle lex retro non agit. Therefore, retrospectivity refers to relations which emerged prior to the entry into force of a statute and which still continue. In this case, the new legislation is directly applied to the ongoing legal relations. The Tribunal recognises the possibility to rely on the principle of direct operation of law if an important public interest speaks in favour thereof, which may not be balanced with the interest of the individual.^[12]

Retrospectivity consisting in the imperative to apply new law to legal relations (procedural relations) which were indeed initiated under the previous provisions, but all essential elements of those relations have not been completed yet, is not embraced by the lex retro non agit prohibition arising from Article 2 of the Constitution. In the case of retrospectivity, new norms are not applied to events which took place prior to their entry into force, but they only – in a prospective manner – modify the situation of subjects by introducing changes for the future^[13].

To sum up, the prohibition from the retroactivity of law, arising from the rule-of-law clause contained in Article 2 of the Constitution of the Republic of Poland, occurs when newly enacted provisions regulate situations which emerged and were completed prior to the entry into force of those new provisions. Hence, such situations should be assessed on the basis of provisions which were then in force. In turn, retrospectivity applies to situations which were initiated under previous provisions, but they are of a continuous character, they are still ongoing, and their essential elements have not been completed yet. Retrospective provisions operate in those situations for the future, and they are not prohibited by Article 2 of the Constitution.   

^[1] The judgment of the Constitutional Tribunal of 19 November 2008, ref. no. Kp 2/08, OTK no. 9/A/2008, item 157.

^[2] It was discussed in detail for instance in the judgment of 19 November 2008, ref. no. Kp 2/08, OTK ZU no. 9/A/2008, item 157 as well as in the judgment of 16 March 2019, ref. no. Kp 1/17, OTK ZU A /201, item/28.

^[3] See the judgment of the Constitutional Tribunal of 16 March 2017, ref. no. Kp 1/17, OTK ZU A/2017, item 28 and the jurisprudence cited therein.

^[4] The ruling of the Constitutional Tribunal of 29 January 1992, ref. no. K 15/91, OTK no. 1/1992, item 8.

^[5] The judgment of 12 May 2009, ref. no. P 66/07, OTK ZU no. 5/A/2009, item 65.

^[6] E.g. the ruling of the Constitutional Tribunal of 30 November 1993, ref. no. K 18/92, OTK 1993, part II, item 41.

^[7] The ruling of the Constitutional Tribunal of 28 May 1986, ref. no. U 1/86, OTK 1986/1/2.

^[8] The judgment the Constitutional Tribunal of 25 September 2000, ref. no. K 26/99, OTK ZU no. 6/2000, item 186.

^[9] The judgment of the Constitutional Tribunal of 16 March 2019, ref. no. Kp 1/17, OTK ZU A /201. item/28.

^[10] The judgment of the Constitutional Tribunal of 19 November 2008, ref. no. Kp 2/08, OTK no. 9/A/ 2008, item 157.

^[11] See E. Łętowska, Polityczne aspekty prawa intertemporalnego [in:] “Państwo, prawo, obywatel”, Wrocław 1989, p. 355. See also P. Tuleja, Konstytucyjne podstawy prawa intertemporalnego w orzecznictwie Trybunału Konstytucyjnego, “Kwartalnik Prawa Prywatnego” 1997(1), p. 157 et seq.

^[12] The judgment of the Constitutional Tribunal of 16 March 2019, ref. no. Kp 1/17, OTK ZU A /201. item/28.

^[13] More on that E. Łętowska, ibidem, p. 352.